from the because-only-Senate-staffers-are-allowed-to-access-unauthorized-documents dept

Sen. Feinstein seemed incredibly outraged that her office was spied on by the CIA in its efforts to keep a torture report under wraps. This was noted with some attendant irony, given Feinstein's boisterous support of the NSA's surveillance efforts.

The Senate Intelligence Committee has opened an investigation into how McClatchy obtained the classified conclusions of a report into the CIA’s use of waterboarding and other harsh interrogation tactics, the panel’s chairwoman said Friday.

Sen. Dianne Feinstein, D-Calif., said she was also referring the case to the Justice Department for investigation.

“If someone distributed any part of this classified report, they broke the law and should be prosecuted,” Feinstein said in a prepared statement. “The committee is investigating this unauthorized disclosure and I intend to refer the matter to the Department of Justice.”

Unauthorized disclosure, maybe. But it's looking more and more like the only way Americans are ever going to see the inside of the infamous report is via unauthorized channels, what with the CIA asking for redaction privileges. This is the same Senator who fought the CIA over control of this report, only now she wants to control how the information is fed to the public.

The investigation of the CIA wasn't performed just because Washington had money to waste. Supposedly this was done in the public interest, even if almost everyone involved has done as much as they can to keep the information out of the public's hands. It's the kind of government no one wants: one that internalizes its investigative efforts and withholds the findings. The public is frequently treated like an unwanted side effect of governing. "Shut up," Feinstein explained, "or we'll make you regret ever speaking up."

“We are disappointed that Sen. Feinstein plans to seek a Justice Department investigation of our journalism,” said James Asher, McClatchy’s Washington bureau chief. “We believe that Americans need to know what the CIA might have done to detainees and who is responsible for any questionable practices, which is why we have vigorously covered this story.”

Asher is right about the public knowing, which is ostensibly the endpoint of investigations like these. But now that it's all been compiled, representatives are (somewhat inadvertently) joining forces with the same agency they decried and throwing as much dirt as they can over any exposure. There's a slim chance that much of the 480-page "executive summary" will survive the rounds of redactions headed its way. For McClatchy to release a 2-page summary is a drop in bucket compared to the voluminous whole.

The DOJ will now (possibly) start searching for yet another whistleblower, one who felt the refusal to discuss the contents beyond vague generalities was an intellectually dishonest move by those heading the investigation. But it's even more wrongheaded for Feinstein to request an investigation into this leaked document, only a few months removed from the CIA asking the DOJ to investigate Feinstein's staffers for their "unauthorized removal" of documents. It's apparently OK to take "unauthorized" documents if you're a Senator, but not so much if you're a journalist.

To outside observers focused on Snowden's leaks, the intelligence community's decision to show its hand looked very much like a calculated move designed to shift focus away from the ongoing "unauthorized disclosures" and onto the incautiously triumphant agency. Now, nearly two months down the road, intelligence officials are claiming this leak has been more damaging to its surveillance efforts than all of Snowden's combined.

Since news reports in early August revealed that the United States intercepted messages between Ayman al-Zawahri, who succeeded Osama bin Laden as the head of Al Qaeda, and Nasser al-Wuhayshi, the head of the Yemen-based Al Qaeda in the Arabian Peninsula, discussing an imminent terrorist attack, analysts have detected a sharp drop in the terrorists’ use of a major communications channel that the authorities were monitoring. Since August, senior American officials have been scrambling to find new ways to surveil the electronic messages and conversations of Al Qaeda’s leaders and operatives.

“The switches weren’t turned off, but there has been a real decrease in quality” of communications, said one United States official, who like others quoted spoke on the condition of anonymity to discuss intelligence programs.

Why the change in heart? Well, when officials first leaked the details, the government asked that certain names involved be withheld. The New York Times complied. McClatchy News, however, did not. When it broke the story, it mentioned two names.

An official who’d been briefed on the matter in Sanaa, the Yemeni capital, told McClatchy that the embassy closings and travel advisory were the result of an intercepted communication between Nasir al-Wuhayshi, the head of the Yemen-based Al Qaida in the Arabian Peninsula, and al Qaida leader Ayman al Zawahiri in which Zawahiri gave “clear orders” to al-Wuhaysi, who was recently named al Qaida’s general manager, to carry out an attack.

The question now becomes: if the leak was so damaging, why did the government leak it? Sure, it told the New York Times that revealing the names would "jeopardize its operations." But it would seem that simply revealing it had listened in on a "conference call" would do the same thing, especially after issuing orders to close down embassies it thought might be affected. (This group of nineteen embassies was reopened after it was determined the plot centered on Yemen.) It wouldn't take the terrorists involved too long to figure out what recent group discussions centered around threats to embassies and, from there, narrow down which forms of communication were used. McClatchy's decision to name names seems incidental to the whole collection process.

When the fingers are pointed by the intelligence community, a great many of them need to be aimed at officials privy to the details. This was originally portrayed as intelligence agencies doing the job they keep claiming they're doing: detecting and reacting to terrorist plots. Two months down the road, the leak/spin attempt is being referred to as "incredibly damaging." It just doesn't add up.

It seems that others are finding the Times story (and officials' claims) unbelievable as well. McClatchy's pushback on the NYT's narrative involves some strongly-worded statements that question the government's credibility and its delayed reaction.

Asher, in a statement, said that in the nearly two months since McClatchy had published its story, no U.S. agency has contacted the newspaper company about the article or has asked any questions about the origins of the story.

“Multiple sources inside and outside of the Yemeni government confirmed our reporting and not one of them told us not to publish the facts,” Asher said. Gregory Johnsen, a Yemen expert and the author of “The Last Refuge,” a book on al Qaida in Yemen, said that he had been told before the McClatchy report that Zawahiri and Wuhayshi were the two men who’d been monitored and that many people in Yemen knew the details of the communication. Johnsen had made a similar statement to McClatchy in early August.

“The idea that the identities of Wuhayshi and Zawahiri are responsible for the difficulties the U.S. is having in tracking al Qaida and AQAP is laughable,” Johnsen said Monday, referring to the Yemen al Qaida affiliate by its initials. “The U.S. publicly closed 19 embassies, the participation of Wuhayshi and Zawahiri was well known in Yemen. I was told about it prior to McClatchy publishing it. And once the leaks start from the U.S. government they can be hard to stop or to control.”

That last sentence is particularly damaging. The anonymous officials quoted in the several articles dealing with the "terrorist chatter" were pushing a narrative of their own -- one that portrayed the US intelligence network as heroes combating terrorism using its extensive surveillance toolkit. The faux-leakage seemed to be ordained by the administration itself, which issued no statements at the time decrying the spilling of confidential information. What looked at the time to be a blatant attempt to spin the story in the NSA's favor now looks undeniably like a diversionary tactic that backfired badly, possibly compromising a valuable intercept.

But even this new concern may be nothing but spin, or an attempt to lull NSA targets into a false sense of security. As McClatchy notes, much of the communications loss occurred well before the August leaks.

Johnsen and other observers of Yemen said they doubted that the reports had anything to do with a drop-off in terrorists “chatter.” They said the decline in al Qaida in the Arabian Peninsula’s use of electronic communication pre-dated the August embassy plot, with some tying it to increased pressure on the group--including a sustained uptick in the frequency of drone strikes on Al Qaida targets dating back to the end of 2011…

Yemeni journalists also have noticed that once-regular email statements from the group have dried up since mid-2012 and attributed the silence to a Yemeni military offensive against AQAP-affiliated militants in the southern Abyan province.

There's no indication the administration is mounting an investigation into these "leaks," which would indicate there was some approval at high levels to allow this narrative to be deployed. If the NSA has truly lost a valuable intercept, it really has no one to blame but the White House.. and itself.

from the hot-news-loss dept

"Hot news" was pretty much dead a few years ago. The court-created doctrine, which resulted in a weird quasi-intellectual property on factual information about a century ago, hadn't been used for years and many people had assumed that it was pretty much gone. However, old legal doctrines die hard and, a few years back, some Wall Street firms sought to revive it, claiming that the website theFlyOnTheWall.com violated their "hot news" rights by accurately reporting on how those Wall Street firms were rating stocks. That's factual information and not protected by copyright, but the firms claimed it undermined their business models via hot news... and the lower court agreed, issuing an injunction.

Thankfully, an appeals court has dumped all of that, claiming that hot news is preempted by federal copyright law and that there's nothing wrong with reporting on factual information. The court mainly relies on the famous NBA v. Motorola case, which found that basketball scores and stats were facts and not protected by copyright or hot news. Using the same rules, the court finds that copyright wipes out any "hot news" in this case as well.

We conclude that applying NBA and copyright preemption
principles to the facts of this case, the Firms' claim for "hot
news" misappropriation fails because it is preempted by the
Copyright Act. First, the Firms' reports culminating with the
Recommendations satisfy the "subject matter" requirement because
they are all works "of a type covered by section 102," i.e.,
"original works of authorship fixed in a... tangible medium of
expression." 17 U.S.C. § 102. As discussed above, it is not
determinative for the Copyright Act preemption analysis that the
facts of the Recommendations themselves are not copyrightable.
See NBA, 105 F.3d at 850. Second, the reports together with the
Recommendations fulfill the "general scope" requirement because
the rights "may be abridged by an act which, in and of itself,
would infringe one of the exclusive rights' provided by federal
copyright law," Altai, Inc., 982 F.2d at 716 (citing Harper &
Row, 723 F.2d at 200), i.e., "acts of reproduction, performance,
distribution or display," id. (internal quotation marks omitted).

Third and finally, the Firms' claim is not a so-called
INS-type non-preempted claim because Fly is not, under NBA's
analysis, "free-riding." It is collecting, collating and
disseminating factual information -- the facts that Firms and
others in the securities business have made recommendations with
respect to the value of and the wisdom of purchasing or selling
securities -- and attributing the information to its source. The
Firms are making the news; Fly, despite the Firms' understandable
desire to protect their business model, is breaking it. As the
INS Court explained, long before it would have occurred to the
Court to cite the First Amendment for the proposition:

[T]he news element -- the information
respecting current events contained in the
literary production -- is not the creation of
the writer, but is a report of matters that
ordinarily are publici juris; it is the
history of the day. It is not to be supposed
that the framers of the Constitution, when
they empowered Congress "to promote the
progress of science and useful arts, by
securing for limited times to authors and
inventors the exclusive right to their
respective writings and discoveries" (Const.,
Art I, § 8, par. 8), intended to confer upon
one who might happen to be the first to
report a historic event the exclusive right
for any period to spread the knowledge of it.

The court also distinguishes the classic "hot news" case (INS) by noting that in that case, the competing firm was taking AP news, rewriting it, and pretending it was its own. That's not what's going on here, where ratings are simply being aggregated.

This is an excellent ruling, though I doubt we've seen the end of "hot news" yet. There may still be appeals, and there are a few other such hot news cases out there. But it's nice to see the judges toss this one out.

from the permission-nation dept

There are a bunch of different newsreader type apps out there, and for years there have been all sorts of apps that let you aggregate content into personal collections. A new one, which recently hit the market for iPads, is called Zite and, apparently, it's getting pretty good reviews. Basically, it can look at what you follow on things like Twitter and Google Reader and formats an algorithmically chosen aggregation of that content to look something like a magazine. If you're familiar with Flipboard, it's somewhat similar, but the implementation is a bit different. I remember when Flipboard came out, there were copyright questions concerning how it scraped various websites.

However, for whatever reason, this new service Zite has really set off pretty much everyone in the traditional newspaper business. A list of who's who in the newspaper/magazine world, including the Associated Press, the Washington Post, Dow Jones, Scripps, Gannett, McClatchy, Time and even National Geogrpahic, all teamed up to send a nastygram (embedded below) that effectively says "hey, we're all for innovation, but you can't innovate without first paying us."

Now, to be clear, technically these newspapers may have a point concerning the fact that Zite displays their content. But if you start to go down that path, you suddenly realize that so does a browser. Zite is really just a form of a browser, that tries to make their content more useful. Again, some may point out that Zite strips some ads from publications, but, again, so do many browsers that have ad blocking extensions installed. When viewed that way, how is Zite really anything other than a specialized browser? If they're claiming that's infringing, then is it really that different from claiming that other browsers/aggregating tools are infringing.

And, honestly, if creating an app that makes it easier to read your content is a threat to your business, you're doing business wrong.

I will say I'm a bit surprised to see the NY Times missing from the list of angry publications, since they've gotten upset about similar apps in the past, but really, this just seems like another example of publications thinking that anyone making their content more readable has to first get permission. If someone wants to make Techdirt content more readable, please go right ahead.

from the they-will-regret-this dept

Yesterday we wrote about Google and Twitter's amicus brief in the infamous FlyOnTheWall hot news case, and the folks over at the Associated Press were kind enough to send over a link to the amicus brief from a huge coalition of newspapers. Basically, every big US newspaper or newspaper organization signed on to this one, including the Associated Press, AFP, the NY Times, the Washington Post, Gannett, McClatchy, Belo, Scripps, Time, and the Newspaper Association of America (just to catch everyone else). Considering that the AP has been leading the charge to bring back hot news, you can probably guess where this one is going:

The short summary? "We don't care about TheFlyOnTheWall or Barclays or this specific case, but we're scared to death that you might make a ruling that says the hot news doctrine should go away."

I'm still sort of amazed that any serious news organization supports the hot news doctrine, because it's almost guaranteed to come back and bite them if it is regularly used again. All of the newspapers above rely on rewriting news from other publications to some extent, whether they admit it or not. If they really support this, they're going to run into trouble themselves, even if they're apparently unwilling to admit it. It's incredibly short-sighted.

Also weird is the claim that these newspapers "rely" on hot news today. They don't. Sure, the hot news doctrine has technically been around for about a century, but it's barely been used at all in the last few decades. It was, for all intents and purposes, a dead doctrine that many considered not worth keeping around (pdf). To claim that these organizations have relied on the hot news doctrine is ridiculous, because it's barely been showing up in court until recently.

Either way, it looks like lots of parties who are concerned about "hot news" have realized that TheFlyOnTheWall case has become ground zero for whether or not "hot news" is actually allowed.

It seems like the ones who orchestrated the whole mess should be losing their jobs or getting pushed into smaller quarters. But they aren't.

Apparently that was enough to get an official reprimand letter put on file (though, the union is now protesting this). However, it shows the way the AP still views the journalism business, where actually expressing some sort of opinion is somehow seen as an offense. In this case, it wasn't even in his capacity as a reporter, which makes the whole thing even sillier. I'm going to trust someone who is free to tell me their opinion over someone who has to pretend he has no opinion, any day.